Manner Chevrolet, Inc.

234 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Manner Chevrolet, Inc. and International Association of Machinists & Aerospace Workers, AFL-CIO, Local Lodge 239 and International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local 231. Case 19-CA-4047 May 28, 1969 DECISION AND ORDER BY MEMBERS FANNING, BROWN, AND ZAGORIA On March 4, 1969, Trial Examiner Henry S. Sahm issued his Decision in the above-entitled proceeding, finding that the Respondent had not engaged in certain unfair labor practices and dismissing the complaint, as set forth in the attached Trial Examiner's Decision. Thereafter, the General Counsel filed exceptions to the said Decision, and a supporting brief, Local 231 of the Teamsters, one of the two Unions seeking joint representation of the Respondents' employees, filed a brief in support of the General Counsel's exceptions , and the Respondent filed cross-exceptions and a supporting brief. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and briefs, and the entire record in this case , and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner as modified herein.' ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the complaint herein be, and it hereby is, dismissed. 'We agree with the Trial Examiner that this case should be dismissed, but we rely solely upon a lack of showing of bad-faith refusal to bargain by the Respondent, rather than the reason given by the Trail Examiner. The Respondent expressed doubt of the Unions ' majority; the Unions did not offer to prove majority until this hearing ; the Respondent engaged in no misconduct, such as conduct calculated to dissipate majority support among employees . Sec. 8(aX5) violations on the basis of a card showing place a burden upon the General Counsel of showing both valid authorizations executed by a majority and refusal of recognition in bad faith. See Strydel, Inc., 156 NLRB 1185, 1187 ; see also Aaron Brothers Co., 158 NLRB 1077. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE HENRY S. SAHM, Trial Examiner : The novel question presented here is whether two unions conducting a joint organizational campaign , can add together the sum total of all the authorization cards signed by the employees so as to establish their status as majority representative where the employees signed cards for one union or the other which did not designate both unions to act for them as joint bargaining agent. The case was heard at Seattle, Washington, on November 26, 1968, on a charge filed June 6, 1968, and a complaint which issued on September 6, 1968. With respect to the unfair labor practices, the complaint alleges that since March 8, 1968, the "Unions jointly have represented a majority of the employees ...." and since that date Respondent has refused to negotiate with the "Unions" in violation of Section 8(a)(5) of the Act. Briefs were filed by the Respondent and the Teamsters Union.' The Respondent filed an answer alleging that it is contrary to the law for two unions "to obtain a majority by way of joining forces and taking the resulting total obtained thereby in determining whether the required majority exists." Moreover, avers Respondent, it has "a good faith doubt as to whether the purported representatives" of the two Unions represent a majority of Respondent's employees. Upon consideration of the entire record in the case, there are hereby made the following: FINDINGS OF FACT JURISDICTIONAL FINDINGS The Respondent, a Washington corporation, with its principal place of business in Ferndale , Washington, is engaged in the sale, maintenance and repair of new and used automobiles . During the past year , the Respondent did a gross volume of business in excess of $500,000 and products valued in excess of $50,000 were shipped to its Ferndale, Washington, place of business from points outside the State of Washington. It is found, therefore, that Respondent is engaged in commerce within the meaning of the Act and that it would effectuate the 'The representative of the General Counsel failed to file a brief although it was emphasized to all counsel to do so because of the novel question involved. As a result, the Trial Examiner does not have the benefit of a formalized statement based upon the transcribed record giving his analysis of the facts, applicable law, and the specific reasons for the contentions made. This is particularly necessary in this proceeding which involves both a novel question of law and an unorthodox bargaining approach. Moreover, it is strange, indeed, for one to investigate the case, interview witnesses, prepare for hearing , present the case, argue it and fight for it before and during the hearing but when the issue reaches climax on the battlefield of decision , and after the evidence is in and the hearing is at an end, to fold one's tent of advocacy by neglecting to file a brief and silently steal away leaving the Trial Examiner to surmise , in some instances, what are the theories upon which the case is being tried , as well as the specific contentions . This is particularly irksome in those situations where litigants not only fail to advance legal theories and evaluations of the facts at the hearing, as well as the remedies sought , and also neglect to file briefs after the hearing, but wait until the Trial Examiner finds adversely to them in his Decision and then, for the first time, propound thew factual concepts and legal theories to the Board in their bill of exceptions and brief filed with the Board . If their contentions had been argued in their briefs, the Trial Examiner would have been, at least, afforded the opportunity to discuss these contentions in his Decision , which, in turn , as a matter of sound administrative law principles, would facilitate both Board and judicial review. Such steps are conducive to establishing a well-laid foundation upon which the structure of argument can be erected and the pinnacle of advocacy sturdily built. As was stated by the Court of Appeals for the Ninth Circuit in Carcade Employers ' Assn. v. N.L.R. B.. 440 F.2d 490. "The function of the National Labor Relations Board is best served if parties put all their claims and desired remedies before it ." Member Fanning in an address before the New Orleans Chapter of the Federal Bar Association, on October 19, 1959, stated: ... The briefs of counsel play nearly as large a part in putting flesh on a statute as the decisions of the judges. Careful and incisive analysis by counsel is the foundation of sound decisions. The more intricate the statute, the more important such analysis is to just decisions. 176 NLRB No. 32 MANNER CHEVROLET, INC. policies of the Act to assert jurisdiction herein. THE LABOR ORGANIZATIONS INVOLVED The Teamsters and Machinists Unions are labor organizations within the meaning of Section 2(5) of the Act. The Alleged Unfair Labor Practices The Machinists and Teamsters Unions agreed in January 1968, to undertake a joint organizational campaign of all the nonunion automobile dealers in Whatcom County, Washington, and the Respondent's employees in particular. It was further agreed that the Teamsters would have "jurisdiction" over Respondent's lubrication, wash and parts employees and the Machinists Union "would represent" the mechanics, body and fender employees. The employees of Respondent's repair shop were contacted and five of them attended a meeting on February 8 at the offices of the Machinists Union.' The following day, February 9, the following named employees of Respondent signed Machinists "Membership Application" cards: Hugh Hendrix, Robert LaPlant and Douglas McClimans. On February 9, 1968, John Crnich and Hugh Hendrix signed separate, identical papers on Teamsters Union letterheads authorizing that Union "to represent me and in my behalf to negotiate and conclude all agreements as to hours of labor, wages and other employment conditions."3 On June 4, 1968, a Machinists card was signed by Mike Lindstrom.4 These "Membership Application" cards of the Machinists Union state that the signer applies for membership in the Machinists Union and tenders $10 therefor and also authorizes the Union "to act as my representative for collective bargaining." On March 8, 1968, the following identical letters on the letterheads of both Local 239 of the Machinists Union and Local 231 of the Teamsters Union were sent to Respondent:' Mr. Dale Manner, Pres. Manner Chevrolet Inc. Ferndale, Washington 98248 Gentleman: This letter will serve to advise that the undersigned representatives of the International Association of Machinists Local Lodge 239, and the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers Local 231, Bellingham, Washington; represent the employees of your Company in units appropriate for bargaining and therefore wish to arrange a meeting with you or your representatives for the purpose of negotiating a Collective Bargaining Agreement covering wages, hours, and working conditions on behalf of those employees who are working within the jurisdiction of the above mentioned labor organizations. 'Manner, president of Respondent, testified, in response to a question by the General Counsel 's representative, that on March 8, 1968, there were seven employees in the unit described in the complaint. 'Copies of these authorizations are attached to this Decision as "Appendix A." (Omitted from publication.] 'Armstrong, a Machinists Union official , testified as follows with respect to obtaining Lindstrom's signature: "It was a later effort . This young man came to work there after we originally started our program, and he came into the office to seek membership with us." 'G.C. Exhs. 4 and 6. 235 In connection with the above request we are prepared to meet any day during the week of March 11, 1968; however for purposes of establishing a definite time we are suggesting Wednesday, March 13th, at 10:00 A.M. in your company offices in Ferndale, Washington. In the event you wish an alternate time or place, please call one of the telephone numbers listed below. Wally Armstrong /s/ Wally Armstrong Machinists Lodge 239 733-8520 Marvin Eggert /s/ Marvin Eggert Teamsters Local 231 734-7780 No written reply was received to this letter but Respondent's president agreed to meet with the two Unions' officials on March 13. However, he never met with them. The Unions again wrote to Respondent on March 15, and asked for a meeting on March 21, to which Manner agreed. On the morning they were to meet, Manner notified the Machinists and Teamsters Unions' offices that he would be unable to attend the meeting. During the month of May, the Washington Department of Labor and Industry offered its good offices regarding this matter but to no avail. On June 7, 1968, representatives of the Machinists and Teamsters went to Respondent's place of business unannounced and spoke to Charles Manner, president of the Respondent. The union officials claimed they represented a majority of his shop employees and stated that they desired to meet with him for the eventual purpose of negotiating a collective-bargaining agreement. The Unions did not offer to show Manner the signed authorization cards of his employees which they then had in their possession when they met with him. Each Union gave Manner copies of their proposed contracts for him to consider.' Manner, in response to a question from the General Counsel's representative, testified that the union officials did not show him any authorization cards signed by his employees. He testified that he "stated on several occasions that my people didn't want to join, and they didn't give me any proof that they did or anything else. I didn't ask for it, but assumed they would." The results of this confrontation were inconclusive. Manner testified that one of his employees, Van Dantop, had informed him that if the repair shop "went union" he would quit his job and another employee stated to him "he wasn't interested at all." Employee Yost, continues Manner's testimony, "told me that one of the union people . . . had spent two or three evenings in his home and finally he [Yost] had to ask him to leave." "John Crnich," testified Manners, "was out on sick leave when all this went about and when the doctor gave him the O.K. to come back to work, he [said he] would come back to work only he was afraid if he did there, where his wife works, might be picketed because she belongs to a union." At the date of the hearing, McClimans and LaPlant, two repair shop employees, had gone to work for another Chevrolet dealer and four employees continued to work after picketing commenced, of whom one has since retired. Hugh Hendrix, who signed both a Machinists card and the Teamsters authorization, has since died.7 'Reap. Exhs. I and 2. 'G. C. Exhs. 9 and 14. See fn. 21. 236 DECISIONS OF NATIONAL On June 17, both Unions established a picket line around Respondent's place of business which was in effect at the time of the hearing. It is uncontradicted that none of Respondent's employees who signed union authorization cards were ever observed on the picket line.' Immediately thereafter, Attorney Rhea was engaged by Respondent as its counsel. On June 24, a letter on Local 239 of the Machinists Union letterhead, signed by both Unions, was sent to Attorney Rhea which reads as follows: Dear Sir: This letter will confirm our conversation by telephone on this date in which we discussed the problem and a possible solution to the matter involving our client, Manner Chevrolet, of Ferndale, and the Whatcom County Automotive Council, jointly formed by Machinists Lodge 239, and Teamsters Local 231. It has been our objective from the beginning to settle our problem in a peaceful fashion whether through negotiations, conciliation or an election procedure. We believe the record will substantiate this position and we are enclosing for your information copies of correspondence between the parties involved. In regard to the employees represented by the Automotive Council we claim a majority of the workers in the WORK'JURISDICTION outline as enclosed. We are confident that if you could use your office to arrange a meeting with your client, and the undersigned, that some satisfactory ground rules could be formulated to effect a settlement of our mutual problem. At this date we have not contacted all our members involved to secure their permission to divulge their names . However, we will have them available at any meeting you may set up. Whatcom County Automotive Council Machinists Lodge 239 Teamsters Local 231 enc. Attorney Rhea testified as follows: THE WITNESS: Mr. Manner came to me either the day the picket line was put at his place or certainly the day following. I think it was the day of it. Later, this has to be my best estimate, two to three days later, Mr. Eggert called me and asked if I was representing Mr. Manner. My reply was, "Yes, Mr. Manner has been in to see me." Mr. Eggert then asked if we could arrange a meeting. I said, "well, perhaps and perhaps not", and the conversation was inconclusive. There was a later call from Mr. Eggert in which he, then, asked me the same question and I said, "Do you have authorization cards?" His reply was, "We do". I said, "Could we see them?" He was very hesitant. I said, "May we have the names of them", and there was some rather undecided response from him culminating in his statement, "Yes, I will give you the names". I then waited for them 'In Seven Up Bottling Company, 92 NLRB 1622, 1623, it was held that where a majority of respondent's employees picketed his plant , this was proof that the union represented a majority of his employees . Conversely, it would seem that if none of the employees picket , evenhanded justice would require the finding that the Union did not represent a majority of the Respondent's employees. LABOR RELATIONS BOARD because I was very concerned with that as a completely key issue as to the validity of all that had been done and was going to be done. Quite considerable time passed and I then received a communication from him in which he indicated that they had not gotten consents to do that. At no time, in any conversation with Mr. Eggert from the first to the present, did I hear him offer to display the authorization cards to • a disinterested third party. That is all of my testimony. TRIAL EXAMINER: Now, do I understand you to say that when you asked him to display the authorization cards, that you stated or it was understood or agreed that it would be to a disinterested third party? THE WITNESS: No. I asked first for either Mr. Manner or myself to see them. Then was the reply that yes, he would get me the names. Not the cards, the names. Then, instead of that being carried out ultimately, the word was communicated to me that they had not gotten consent to doing so . Then say, as a general point in testimony, Mr. Examiner, that at no time from the first contact from Mr. Eggert to the present, has any representative of either of the complainant unions offered to display the authorization cards to a disinterested third party. TRIAL EXAMINER: Now, you testified something about an offer or rather you requested, then as an alternative, that the names be shown. THE WITNESS: Yes TRIAL EXAMINER: Was that to yourself or to a third party? THE WITNESS: I want to be clear to that, the third party was Mr. Manner. It was to be either me or Mr. Manner. Marvin K. Eggert, secretary-treasurer of the Teamsters Union, testified on cross-examination, that he spoke to Attorney Rhea and that when Rhea asked him to produce the signed authorization cards or a list of the names of Respondent's employees who signed the cards that he offered to show them. Later in his testimony, however, he stated he did not recall offering to provide the names of those who signed cards, stating ". . I wouldn't have offered that." At another point in his testimony, Eggert admitted assuring Rhea that he would supply such a list of names of the men who had signed the authorization cards, "Based on certain relative circumstances, yes." Then he contradicted himself by denying that he agreed to supply such a list stating "All things being equal, no, not a list of the names." He then testified he agreed to show the bargaining cards to "a disinterested individual" but acknowledged he had never named such a disinterested individual. When he was again asked if he had ever offered to supply a list of the names of the employees who had signed union cards, he was evasive and equivocal. Finally, he insisted he offered to show the signed authorization cards to both Manner and Rhea. Such a farrago of testimony leads to the conclusion that a finding on this facet of the case should not be based on Eggert's testimony which shows it is contradictory and inconsistent, and that he is an unreliable witness. Furthermore, Manner testified the Union's officials never offered to show him, nor a disinterested third party, the signed authorization cards. MANNER CHEVROLET, INC. 237 Issue In summary, it appears that during a joint organizational campaign, three employees signed Machinists cards, one signed for the Teamsters and one signed both Machinists' and Teamsters' authorizations. 9 Undeniably, over 50 percent of the seven employees in the unit, on March 8, 1968, did sign cards but there is a problem because there is no clear majority for either the Machinists or Teamsters Unions. The two Unions, however, want to bargain with the Respondent as a joint representative of his repair shop employees. The question then arises as to whether or not the authorizations of the individual Unions are a legitimate authorization of the two Unions acting together as a single joint representative. Discussion and Conclusion This situation first must be distinguished from situations in which two or more unions are attempting to secure the requisite percentage of employees to sign authorization cards so that an election can be held. Since the very purpose of these cards is to show interest in the Union, it is not crucial whether interest is shown in more than one. The very purpose of the election is to determine the single representative.10 The instant problem also differs from the situation which arises when the union designated on the authorization cards is different from, but affiliated with, the union seeking to bargain. A designation on an authorization card is a valid designation of a union affiliated with the one named on the card." In 1959, the Board faced the problem related to the one involved here in Super Sagless Spring Corporation.' 2 In Sagless, 47 employees, a majority of the employees in the unit, signed authorization cards for the Upholsterers' International Union and one signed a card for the Teamsters. The Trial Examiner did not believe the signature on the Teamsters card to be authentic so it was rejected as evidence of authorization. Nevertheless, the Upholsterers and the Teamsters proposed to be a joint representative. Assuming majority status of the Upholsterers' Union, the Trial Examiner held that "the written union authorization cards signed by employees of the Respondent did not authorize the two labor organizations herein involved to...act for them as a joint representative for the purposes of collective bargaining."" Although the Board adopted this portion of the Trial Examiner's decision, its impact is weakened somewhat by the note that one of the members of the panel would also dismiss the 8(a)(5) allegation because the union did not press its demand for recognition sufficiently to impose a duty to bargain.' The issue was delineated a bit more clearly in Leroy Stovesand Motor Co." In this case twelve employees signed cards of the Machinists Union, thinking that this union would represent them, and two signed Teamsters' cards without realizing it. At the time of signing, none of the employees knew that the Machinists and the Teamsters wanted to represent them jointly. The Trial Examiner stated that when two labor organizations claim to be joint representatives, there must be clear proof that a majority of the employees in the unit designated both unions to represent them on a joint basis. This is necessary to prevent two or more unions from conspiring to obtain a majority where no single union could get one. "A majority joint representation requires a vote on this specific situation."" The Trial Examiner dismissed the 8(a)(5) allegation and the Board adopted his finding." The most recent and clear-cut cases dealing with the issue here are National Heating Co.," and Raymond Buick, Inc." In National Heating, Respondent's defense rested principally on its contention that the employees did not validly designate the Pipe Fitters Union and the Sheet Metal Workers Union to act as their joint bargaining representative. In a unit assumed arguendo to consist of 19 employees, 5 signed cards authorizing the Pipe Fitters Union to act as sole bargaining agent, and 5 signed authorization cards for the Sheet Metal Workers Union. Hence, a majority of the employees in the unit did sign authorization cards, albeit for two individual unions. The following is a pertinent part of the Trial Examiner's Decision, adopted by the Board: There remains the issue as to whether Respondent's employees in fact designated the two Unions here involved to act as their joint collective bargaining representative. This question, it seems to me, must quite clearly be answered in the negative. Thus, the face of the respective cards signed by the employees explicitly authorized only the Union designated thereon to act as the bargaining agent. There is no evidence whatsoever to indicate that the employees were ever told that the signing of a card for either Union would also be considered as authorization for both Unions to act as the joint collective bargaining agent. Accordingly, since the evidence does not establish that the employees authorized the Unions to act for them as the joint bargaining representative, or that such was their intention, I shall recommend that the alleged Section 8(a)(5) allegation in the complaint be dismissed.20 In Raymond Buick, supra, two unions demanded recognition from the employer but neither union could show a majority status without relying on cards of three employees who had signed for both unions. The Board stated: "As these cards may not be considered reliable evidence of the signers' selection of either union as their exclusive bargaining agent, neither [union] ever established their status as majority representative." Hence, it would appear that the Raymond Buick and National Heating cases would be dispositive of the issue presented here, and that the alleged designation of the 'Lindstrom, who signed a Machinists card on June 4, 1968, would make a total of eight in the unit. See fn. 4. "See, e.g., Mid-South Packers, inc., 120 NLRB 495; The Bally Department Stores Co., 120 NLRB 1239; Vanadium Corporation of America, 117 NLRB 1390. See e.g., New Hotel Monteleone, 127 NLRB 1092; Up-to-Date Laundry, inc., 124 NLRB 247; L. C. Cassidy & Son , Inc.. 171 NLRB No. 136. "125 NLRB 1214. "125 NLRB at 1237. "125 NLRB at 1215, fn. 4. "127 NLRB 19. "127 NLRB at 25. "See I. Posner, Inc., 133 NLRB 1573, 1575, where 20 employees had signed cards of two locals and the Board held that a majority had not been shown. "167 NLRB No. 73. "173 NLRB No. 199 "in Alton Box Board Company, 173 NLRB No. 105, 80 union authorization cards were signed but 25 of the employees had signed both the cards and a "petition opposing recognition of the Union." The Trial Examiner held that these 25 employees' authorization cards could not be counted in determining whether the Union represented a majority of the employees. 238 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Machinists and the Teamsters Unions in this situation would not be a valid designation of them as a joint representative 21 Upon the record as a whole, it is found that the General Counsel has failed to sustain his burden of establishing by a fair preponderance of substantial credible evidence that the two Unions represented a majority of the employees and that Respondent's failure to recognize and bargain with the Unions was a violation of Section 8(a)(5) of the Act " Accordingly, the complaint is dismissed 23 RECOMMENDED ORDER I hereby recommend that the complaint in this case be, and it hereby is, dismissed "Heidrix signed both Machinists and Teamsters authorizations which show the union officials knew the proper way to have the employees indicate they intended to have both Unions jointly represent them The employer is free at all tunes to demand proof of the Unions majority status before the duty to bargain arises This, the Charging Unions failed to do Such conduct removed the possibility of meaningful bargaining and thus precluded the existence of a situation in which the Respondent's own good faith could be tested If it cannot be tested , its absence can hardly be found Edward Fields Inc v N L R B 325 F 2d 754 761 (C A 2) Times Publishing Company 72 NLRB 676 683 "Respondents counsel stated at the outset of the hearing that 'respondent is still ready to hold the consent election as set forth in the previous letter to the parties and the Board dated October 8 1968 "All authorities cited by the Teamsters Union s counsel in his brief have been carefully considered and it is not believed that holdings in those cases require a finding contrary to the conclusions reached herein However the Trial Examiner rinds no occasion for citing or distinguishing the cited cases because it is believed that the controlling reasons and the authority for this decision have been sufficiently discussed Moreover counsel's contentions and legal theory are based on an interpretation of the facts in this proceeding which are significantly different than the Trial Examiner s and since the applicability of precedent necessarily depends on one s view of the facts, no purpose would be served by discussing all the cases he cited It